State v. Gardner, 10462

• Decision Date: 23 May 1980
• Docket Number: No. 10462,10462
• Citation: 600 S.W.2d 614
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clifford L. GARDNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 614

600 S.W.2d 614

STATE of Missouri, Plaintiff-Respondent, v. Clifford L. GARDNER, Defendant-Appellant.

No. 10462.

Missouri Court of Appeals, Southern District, Division Two.

May 23, 1980.

Motion for Rehearing and for Transfer Denied June 18, 1980.

Application to Transfer Denied July 15, 1980.

John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Michael Baker, Springfield, for defendant-appellant.

PER CURIAM:

Defendant was convicted after a jury trial of the sale of a Schedule II controlled substance. Sections 195.017 and 195.020, RSMo 1975 Supp. He was sentenced to 30 years imprisonment.

The state's case is based primarily on the testimony of Bill Miller, an undercover narcotics agent for the Springfield Region II Narcotics Bureau. Miller testified that he was working with Randy Shimkus and Shimkus suggested they go to defendant's home in Springfield. They were invited into defendant's home by defendant's wife. Shimkus asked defendant if he had any liquid demerol. Defendant said he didn't any more and asked Shimkus if he was interested in demerol tablets. Defendant said it would take about ten minutes to get the tablets and they cost $10 each. Miller and Shimkus asked to buy two tablets apiece. Defendant told his wife to go get some demerol and Miller attempted to give defendant $40 for two tablets for him and two for Shimkus, but defendant told him to give it to Shimkus. Miller did so and Shimkus then gave the money to defendant, but defendant handed it back and said he didn't want anything to do with the money and told Shimkus to give it to defendant's wife. Defendant gave his wife some money and said he wanted two tablets also. She left and returned in about 10 or 15 minutes with a small aspirin container which she handed to defendant. Defendant removed two tablets and slid the container to Miller. Miller saw four tablets in the container, picked it up and put it in his shirt pocket. Miller and Shimkus left shortly afterwards. Miller dropped Shimkus off, returned to his residence, and sealed the aspirin tin in an evidence envelope. He locked it in his briefcase and placed the briefcase in the trunk of his car. The next morning he took the tablets to the region office and turned them over to another agent, who then delivered the tablets to the Region II Crime Laboratory. Don Smith, director of the laboratory, examined the tablets and testified that they contained pethidine which is synonymous with demerol.

Defendant testified that Miller and Shimkus came to his home and Shimkus asked him if he had anything to get loaded on. Defendant said he replied that he didn't have anything. Shimkus then asked defendant about some demerol and defendant told him that his wife knew where she could get some. Defendant said Shimkus offered him money but he refused, saying he didn't want anything to do with it, and Shimkus then gave the money to defendant's wife. Defendant also had his wife purchase two tablets for him. When she returned, defendant took his two out of the tin, and Shimkus picked it up and handed it to Miller.

Randy Shimkus was called as a witness by defendant and stated that he had been working with narcotic agents since late 1974 or early 1975 and had received different amounts of expense money for this during that time. He said it was Agent Miller's idea to go to defendant's house but that he was the one that brought up the subject of demerol. He said that Miller gave the money for the tablets to defendant and that defendant then gave it to his wife. She returned with two tablets which she gave to defendant who gave them to Miller. Other evidence will be mentioned in discussing the points raised by defendant.

Defendant raises twenty-one points in his brief numbered I through XX, including one numbered VII-A. We consider them as they were numbered.

I

Defendant contends that the trial court should have dismissed the state's amended information, based upon § 556.280, RSMo 1969, because that statute is unconstitutional as it gives the prosecuting attorney discretion in charging a defendant under that statute and subjected this defendant to cruel and unusual punishment in violation of Article VIII of the Amendments to the United States Constitution and Article I, Section 21 of the Missouri Constitution. The amended information under the "second offender act" charged that defendant had been convicted of a prior felony and the punishment here was set by the court. Defendant's only case authority cited is Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh. den. 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972). That decision dealt with the death penalty and has no application to the present situation.

In discussing § 556.280, the Missouri Supreme Court, in State v. Maxwell, 411 S.W.2d 237, 240 (Mo.1967), stated:

"The statute and the procedure are valid for all purposes and against all such constitutional attacks. Such a point should be denied peremptorily in future cases."

Granting of discretion to the prosecuting attorney to file under this act has been upheld. Wilwording v. State, 438 S.W.2d 447, 449 (Mo.1969). The fact that a judge rather than a jury sets the punishment does not establish that it would then be "cruel and unusual." Point I is denied.

II

Defendant contends that the amended information should be dismissed because it charged the defendant under the second offender act with a conviction thirteen years old. He claims that using a conviction so remote in time violates equal protection of the law under the Fourteenth Amendment to the United States Constitution. The second offender act has been held not to violate equal protection of the law. State v. Maxwell, supra, 411 S.W.2d at 239. This act places no time limitation within which the previous conviction shall have occurred. State v. Phillips, 511 S.W.2d 841, 843 (Mo.1974). In Phillips, the use of this statute was held proper where the prior conviction occurred twenty-six years previously. Point II is denied.

III

Defendant contends that the trial court should have remanded the case for a "further preliminary hearing" because he was denied effective assistance of counsel at his preliminary and because he was "bound over on unreliable evidence". This point does not say in what manner his counsel was ineffective and does not appear sufficient to preserve anything for review. Riley v. State, 545 S.W.2d 711, 712 (Mo.App.1976). However, there is nothing in the record to indicate that counsel was ineffective. There is also nothing in the record to indicate that defendant was bound over for trial on unreliable evidence. Moreover, it would not be up to us to judge the reliability of the evidence. A preliminary examination is not a trial and does not adjudicate the guilt or innocence of the accused. State v. Clark, 546 S.W.2d 455, 462 (Mo.App.1976). The magistrate is the sole judge of the sufficiency of the evidence and in the absence of fraud or arbitrary conduct, that determination is not subject to review. Id. No fraud or arbitrary conduct is shown. Point III is denied.

IV

The defendant contends that the court erred in allowing the opinion testimony of Don Smith because Smith did not qualify as an expert in chemical analysis. Mr. Smith testified that his examination of certain tablets established that they were pethidine. He was the director of the Region II Crime Laboratory in Springfield, Missouri. He had a bachelor of science degree in cereal chemistry from Kansas State University and had previously been a quality control manager for three years and a laboratory supervisor for six years at a foods company in Springfield. He has attended several seminars and in some of the seminars performed testing of substances. He had made numerous tests and chemical analysis in his five years with the crime laboratory. The qualification of an expert is for the trial court's determination in the exercise of sound discretion. State v. Jones, 518 S.W.2d 304, 311 (Mo.App.1975). We find no abuse of discretion in allowing Mr. Smith to testify. He appeared to have ample qualifications both by education and experience. This point is denied.

V

Defendant next contends that because the evidence indicated that the former chief chemist of the Region II Crime Laboratory had examined the tablets and did not testify, that there was a break in the chain of custody of them. Don Smith, the director of the laboratory, testified that a report attached to the envelope in which the tablets were kept indicated an examination of them by that chemist. The purpose of the custody and possession rule is for assurance that the exhibit has not been altered or tampered with and that there has been no substitution. State v. Lemon, 504 S.W.2d 676, 684 (Mo.App.1973). The state is not required to exclude every possibility of these occurrences and evidence which provides a reasonable assurance that the exhibit is the same and in the same condition meets this test. Id. It is not required that the state produce a witness who has continually kept a watch on the exhibit or retained it in his personal possession State v. Gardner, 534 S.W.2d 284, 291 (Mo.App.1976). The exhibit was in the custody of authorized laboratory personnel and we do not believe that prevents a reasonable assurance that the exhibit is the same and in the same condition. Procedures for keeping and transferring the exhibit indicate an orderly and regular procedure of custody, possession and control. See State v. Gardner, supra, 534 S.W.2d at 290. The state does not have to negate every possibility of tampering with the exhibit. State v. Burnett, 538 S.W.2d 950, 952 (Mo.App.1976). We believe that the chain of custody here was sufficiently established. Point V is denied.

VI

Defendant contends that the state's case failed to show that pethidine was a controlled substance and the trial court thus erred in overruling his motion for...